Knopf et al v. Esposito et al

Filing 171

MEMORANDUM OPINION AND ORDER.......For the foregoing reasons, if the Court of Appeals were to remand this case, the Knopfs motion would be denied. (Signed by Judge Denise L. Cote on 6/14/2019) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
NORMA KNOPF and MICHAEL KNOPF,
:
:
Plaintiffs, :
:
-v:
FRANK M. ESPOSITO, DORSEY & WHITNEY
:
LLP, NATHANIEL H. AKERMAN, EDWARD S. :
FELDMAN, and MICHAEL HAYDEN SANFORD, :
:
Defendants. :
:
-------------------------------------- X

17cv5833(DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
On June 12, 2019, plaintiff-appellants Norma and Michael
Knopf (together, the “Knopfs”) filed a motion for an indicative
ruling pursuant to Rule 62.1, Fed. R. Civ. P.

The Knopfs

request an indicative ruling that, upon remand from the pending
appeal, the Court would modify an Opinion of July 25, 2019
pursuant to Rules 60(b)(2) and 60(b)(3), Fed. R. Civ. P., and
expressly find that the Knopfs’ conspiracy allegations “are
plausible and legally sufficient.”

The Knopfs’ motion is

denied.
An Opinion of December 7, 2017 granted defendants’ motion
to dismiss this action.

See Knopf v. Esposito, No.

17cv5833(DLC), 2017 WL 6210851 (S.D.N.Y. Dec. 7, 2017).
Judgment was entered in favor of the defendants on December 13,
and the Knopfs filed an appeal on December 28.

Shortly

thereafter, an Opinion of March 5, 2018 granted in part the
defendants’ motions for attorney’s fees and sanctions.

See

Knopf v. Esposito, No. 17cv5833(DLC), 2018 WL 1226023 (S.D.N.Y.
Mar. 5, 2018).

On March 8, the Court entered final judgment and

the Knopfs filed an amended notice of appeal.
Following the disclosure of newly-discovered evidence, an
Order of April 24 indicated that the Court would entertain, on
remand from the Court of Appeals, a motion by the Knopfs to
amend the December 13 and March 8 judgments pursuant to Rule
60(b), Fed. R. Civ. P.

The Knopfs and their attorney, Eric W.

Berry, filed their motion on May 14.

The appeal was remanded on

May 18 to allow the Court to vacate or modify the judgments.
An Opinion of July 25 granted the Knopfs’ motion for Rule
60(b) relief “solely to the extent of reducing the sanctions
award . . . against Berry and the Knopfs, and vacating the
sanctions award in favor of Esposito.”

Knopf v. Esposito, No.

17cv5833(DLC), 2018 WL 3579104, at *6 (S.D.N.Y. July 25, 2018).
To the extent the Knopfs sought relief from the December 13
judgment dismissing the Knopfs’ complaint, the motion was
denied.

Id.

The Knopfs’ second motion for relief from judgment would be
denied as untimely.

The Knopfs contend that new evidence --

namely, bank records and statements relating to defendant Frank
Esposito -- demonstrates that their conspiracy allegations were
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plausible and legally sufficient to survive a motion to dismiss.
They bring their motion under Rules 60(b)(2) and 60(b)(3), which
allow a court to relieve a party from a final judgment or order
based on “newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a
new trial” and “fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing
party.”

Fed. R. Civ. P. 60(b)(2)-(3).

Pursuant to Rule

60(c)(1), however, “[a] motion under Rule 60(b) must be made
within a reasonable time -- and for reasons (1), (2), and (3) no
more than a year after the entry of the judgment or order or the
date of the proceeding.”

Fed. R. Civ. P. 60(c)(1).

Judgment on

the motion to dismiss was entered on December 13, 2017 and final
judgment was entered on March 8, 2018.

Because more than a year

has passed since the entry of judgment in this case, any motion
pursuant to Rules 60(b)(2) or 60(b)(3) would be untimely.
The Knopfs contend that their motion is timely because it
was filed within one year of the July 25 Opinion, and Rule
60(c)(1) only requires that a motion under Rules 60(b)(2) or
60(b)(3) be made within one year of a “judgment or order.”

But

a party may not evade the one-year time limitation of Rule
60(c)(1) merely by styling their second Rule 60(b) motion as
relief from a denial of their first Rule 60(b) motion.

Because

the July 25 Opinion “made no substantive change in [the Knopfs’]
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legal position from that established by the [December 13]
judgment,” the one-year time limitation began with the entry of
the December 13 judgment and did not begin anew with the July 25
Opinion.

See Martha Graham Sch. & Dance Found., Inc. v. Martha

Graham Ctr. of Contemporary Dance, Inc., 466 F.3d 97, 101 (2d
Cir. 2006).
The motion would also be denied on other grounds.

As the

July 25 Opinion explained, the December 7 Opinion gave two
principal grounds for dismissing the Knopfs’ first amended
complaint (“FAC”).

See Knopf, 2017 WL 6210851, at *6-7; Knopf,

2018 WL 3579104, at *3.

Only the second ground -- the

plausibility of the Knopfs’ conspiracy allegations -- might be
affected if the Court were to grant the motion and admit the
newly discovered evidence.

It would not affect “the principal

ground for dismissing the FAC, the fact that the Appellate
Division’s orders had removed any restraint on the sale of [an
apartment on East 67th Street].”

Knopf, 2018 WL 3579104, at *3.

Accordingly, granting the motion would not provide the Knopfs
any meaningful relief from the December 13 or March 8 judgments.

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For the foregoing reasons, if the Court of Appeals were to
remand this case, the Knopfs’ motion would be denied.
SO ORDERED:
Dated:

New York, New York
June 13, 2019
__________________________________
DENISE COTE
United States District Judge

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